IMPORTANT POINT
The court emphasized the necessity of recalling witnesses to ensure a fair trial and prevent failure of justice.

JUDGMENT :

Mitali Thakuria, J.

Heard Ms. R. Choudhury, learned counsel for the petitioner. Also heard Mr. D. P. Goswami, learned Additional Public Prosecutor representing the State respondent No.1 and Mr. D. Gogoi, learned Amicus Curiae for the respondent No.2.

2. This application is filed under Sections 438/442/401 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the Order dated 10.07.2024 passed by the learned Special Judge, North Salmara, Abhayapuri in Special (P) 31(J)/2020 wherein, the petition filed by the petitioner for recalling P.W 10 and C.W.1 was rejected.

3. The brief facts leading to the filing of this instant criminal revision petition are as follows: the respondent No. 2 lodged an FIR with the Officer-in-Charge of the Jogighopa Police Station, alleging, inter alia, that on 15.09.2020 at 12 P.M., while her minor granddaughter, aged about 9 years, was walking in front of the petitioner’s house, he called her to his room and raped her by removing her clothes. Upon receipt of the aforesaid FIR, a case was registered vide Jogighopa P.S. Case No. 306/2020 under Section 376 AB of the IPC, read with Section 6 of the POCSO Act. In connection with the said FIR, the petitioner was arrested and forwarded to the learned Special Judge, North Salmara, Abhayapuri on 17.09.2020, from where he was sent to judicial custody. However, the petitioner was subsequently released on bail. After the completion of the investigation, the charge-sheet was submitted against the petitioner under Section 376 AB of the IPC, read with Section 6 of the POCSO Act. Thereafter, the trial of the proceeding began as Special (P) 31(3) 2020. During the proceedings, the prosecution examined as many as 10 P.Ws, including the I.O as P.W.10. The learned Trial Court, vide order dated 10.05.2024, closed the prosecution’s evidence and fixed 13.05.2024 for the examination of the accused petitioner under Section 313 of the Cr.P.C. However, on 13.05.2024, the learned Trial Court deemed it necessary to examine Ms. Sparsita Garg, the then J.M.F.C., North Salmara, as a court witness, and accordingly, a summons was issued to her, fixing 16.05.2024. On 16.05.2024, Ms. Sparsita Garg was examined, cross-examined, and discharged, and the case was fixed for the statement of defence on 14.06.2024. On 14.06.2024, although the case was fixed for the statement of defence, the petitioner remained absent with steps, and the same was allowed, fixing 05.07.2024 for the statement of defence. The petitioner contended that on 10.07.2024, when the case was still at the stage of the statement of defence, the petitioner filed a petition under Section 348 of the BNSS 2023 for recalling P.W.10 and C.W.1, as some vital questions could not be asked due to oversight. However, the learned Trial Court, vide Order dated 10.07.2024, quite mechanically rejected the petition, holding it to be a tactic to delay the trial.

4. Being highly aggrieved and dissatisfied with the impugned Order dated 10.07.2024, passed by the learned Special Judge, North Salmara, Abhayapuri, in Special (P) 31(J)/2020, the petitioner has preferred the instant criminal revision petition, praying for the setting aside and quashing of the impugned Order dated 10.07.2024.

5. Ms. Choudhury, learned counsel for the petitioner, has submitted that learned Trial Court has not appreciated the necessity of recalling the witnesses, as the questions proposed to be asked have been clearly mentioned in the petition itself. A bare perusal of the proposed questions prima facie appears to be decisive for a fair trial of the case. Hence, the impugned Order dated 10.07.2024 is liable to be set aside and quashed. She further submits that the learned Trial Court did not take into consideration that this is a criminal proceeding, which, if the guilt is proven, could result in a conviction. Therefore, the accused should have been granted the opportunity as prayed for. However, the learned Trial Court quite mechanically rejected the prayer